On September 10, 2015, the U.S. Court of Appeals for the Fourth Circuit issued a decision that did two things that are rare in black lung benefits law: (1) it reversed the Benefits Review Board, and (2) it found that the ALJ’s award of benefits was not supported by substantial evidence.
West Virginia CWP Fund v. Mullins, 623 F. App’x 59 (4th Cir. 2015) (slip opinion here), has low precedential weight because it is an unpublished, per curiam opinion (It was joined by Circuit Judges Thacker & Harris and Senior Circuit Judge Hamilton). Yet, the decision should be heeded by claimants’ representatives and physicians who want their opinions to be credited.
The Fourth Circuit’s opinion in Mullins did not provide much factual background, so the facts below are assembled from each of the five public decisions in Mr. Mullins’s claim.
Steven Mullins worked in coal mines for 11 years. However, the physician who performed the Department of Labor’s pulmonary evaluation, Dr. Dominic Gaziano, based his opinion on an understanding of 16 years of coal-mine employment.
In his report, Dr. Gaziano attributed Mr. Mullins’s disabling COPD to “16 year coal mining work and 23 pack-year smoking history” and thus diagnosed legal pneumoconiosis as a substantial cause of Mr. Mullins’s respiratory disability.
Dr. Gaziano testified via deposition. Dr. Gaziano’s exact language is not available in any of the decisions, but it appears that he maintained his opinion that coal-mine dust was a cause of Mr. Mullins’s COPD. However, Dr. Gaziano said it was possible that smoking could be the sole cause of Mr. Mullins’s COPD because he could not differentiate the effects of smoking and coal-mine dust.
Mr. Mullins’s did not provide any other medical reports.
Judge Kane initially denied benefits, finding that Mr. Mullins failed to prove he had pneumoconiosis. Judge Kane did not credit Dr. Gaziano due to the discrepancy between 11 and 16 years of coal-mine employment. (2009 ALJ decision here). Mr. Mullins successfully appealed to the Benefits Review Board which vacated Judge Kane’s pneumconiosis finding and remanded for reconsideration. The Board said, “In light of claimant’s persuasive arguments, the administrative law judge did not adequately explain how the five year discrepancy between the sixteen years of coal mine employment relied upon by Dr. Gaziano and the eleven years credited by the administrative law judge, undermined the credibility of Dr. Gaziano’s opinion finding legal pneumoconiosis.” (2011 BRB decision here).
Fourth Circuit Decision
Because the Fourth Circuit’s decision (by Judges Thacker, Harris, & Hamilton) was short, it is best to let it speak for itself:
Employer’s primary argument is that the ALJ erred by relying on Dr. Gaziano’s opinion to support his findings that Mullins suffers from legal pneumoconiosis and that pneumoconiosis is a substantially contributing cause of Mullins’ totally disabling respiratory impairment. Although we may not reweigh the medical opinions, we may determine whether the weight assigned by the ALJ is supported by substantial evidence, being ever “careful not to substitute our judgment for that of the ALJ.” Harman Mining Co., 678 F.3d at 310. After reviewing the entire record, we conclude that substantial evidence does not support the ALJ’s decision to accord full probative weight to Dr. Gaziano’s opinion.
Dr. Gaziano’s diagnosis of legal pneumoconiosis was based entirely on Mullins’ history of coal dust exposure. Dr. Gaziano offered no objective medical evidence to support the conclusion that Mullins’ chronic obstructive pulmonary disease (“COPD”) arose out of his coal mine employment or was aggravated by coal dust exposure, and Dr. Gaziano confirmed at deposition that Mullins’ symptoms were not specific to any respiratory disease. Dr. Gaziano also admitted that it was possible that Mullins’ COPD could have been caused entirely by cigarette smoking, without any aggravation by coal dust. Thus, Dr. Gaziano essentially presented only the possibility that Mullins’ COPD was caused by coal dust exposure, which we have deemed insufficient to support an award of benefits. See Westmoreland Coal Co. v. Cochran, 718 F.3d 319, 322 (4th Cir. 2013) (reiterating that “mere possibility of causation [is] insufficient to support finding a nexus between a claimant’s pneumoconiosis and his [respiratory impairment]”).
Also problematic in this case is Dr. Gaziano’s reliance on an overestimate of the length of Mullins’ coal mining career by five years. This discrepancy does not bolster the ALJ’s decision to accord full probative weight to Dr. Gaziano’s opinion, especially when the sole basis for Dr. Gaziano’s diagnosis of legal pneumoconiosis was Mullins’ exposure to coal dust. Moreover, the ALJ did not explain how the five-year discrepancy did not make a difference in Mullins’ case.
In sum, Dr. Gaziano’s opinion, which relied exclusively on an inflated coal mining history, is simply insufficient to satisfy Mullins’ burden of demonstrating his entitlement to benefits. Because there remains no evidence upon which to base a finding of entitlement to benefits, we reverse the award of benefits.
slip. op. at 3–5 (footnote omitted).
The Fourth Circuit’s decision is best understood as turning on Dr. Gaziano’s statement at deposition that Mr. Mullins’s COPD could be caused entirely by smoking. This statement appears to be what motivated the court to say that Dr. Gaziano “presented only the possibility that Mullins’ COPD was caused by coal dust exposure.“
The decision should also caution claimants’ representatives and physicians that judges may not see the additive nature of coal-mine dust in causing COPD as something obvious that need not be explained by a physician. Although the Department of Labor has recognized this medical fact in the preamble to the 2001 amendments to the regulations, see, e.g., 65 Fed. Reg. at 79,940 (citing Marine, et al. study), the Fourth Circuit’s decision in Mullins shows that judges may not consider this fact to be so incontrovertible that it need not be stated in an individual miner’s case. The court’s statement that “Dr. Gaziano offered no objective medical evidence to support the conclusion that Mullins’ chronic obstructive pulmonary disease (‘COPD’) arose out of his coal mine employment or was aggravated by coal dust exposure” suggests that it would be wise to support such causation statements with objective medical evidence such as the Marine, et al. study.
A hidden lesson from the case exists in the Board’s 2011 decision. Following the ALJ’s initial denial of the claim due to the discrepancy in years of coal-mine employment, Mr. Mullins’s attorney (Leonard Stayton) was not only able to get the Board to vacate this finding, but also able to get theALJ to change his mind about the significance of the discrepancy in years. Although the Fourth Circuit found the ALJ’s remand analysis to be “problematic” and insufficiently explained, a claimants’ representative who is seeking to address a discrepancy in coal-mine employment could do little better than Mr. Stayton did. The Board’s 2011 decision provides a template for arguments to explain why a physician’s misunderstanding of years of coal-mine employment is not fatal to the physician’s credibility.
I believe that this is the first time in 2015 and the last time since the Sixth Circuit’s September 2014 decision in Navistar, Inc. v. Forester (see previous post here), that a Court of Appeals has disagreed with the Benefits Review Board in a black lung case.
Although the employer was successful in this substantial evidence argument, Mullins is notable because its result is so rare. Mullins should have little effect on black lung practice but it does suggest that providing additional support for causation opinions is a good idea because what may seem self-evident and implicit to those of us who spend much of our time discussing the effect of coal-mine dust on COPD may need to be made explicit to generalist judges.
Steven Mullins was represented by Leonard J. Stayton, Esq. on Inez, KY.
Pen Coal Corp. & the West Virginia CWP Fund were represented by Jeffrey R. Soukup, Esq.; William S. Mattingly, Esq.; Tiffany B. Davis, Esq; and Alison Moreman, Esq. of Jackson Kelly PLLC.
The Director, OWCP was represented by Helen Hart Cox, Esq.